Chillin'Competition

For this twelfth edition of The Friday Slot Chillin’Competition is proud to bring to you an interview with a true antitrust guru: Einer Elhauge. Einer is the Petrie Professor of Law at Harvard Law School, where he teaches antitrust and many other subjects. He was actually one of the reasons why I applied for the Harvard LL.M (I got unlucky because he did not teach antitrust that year!). When someone asks me about the students and professors at HLS my usual response is that most people there are generally as smart/dumb as most other people, with the difference that they’ve had more opportunities in life. There are some exceptions to this and Einer is one of them: you can quickly tell that his mind works at a different pace….  Aside from teaching at Harvard he also testifies regularly as an expert in antitrust economics and is President of Legal Economics; he was Chairman of the Antitrust Advisory Committee to the 2008 Obama Campaign, and is currently on the 2012 ABA Antitrust Transition Task Force.  His most recent book is Obamacare on Trial, and his past books include Global Antitrust Law and Economics; Global Competition Law and Economics; U.S. Antitrust Law and Economics; Statutory Default Rules; and Research Handbook on the Economics of Antitrust Law.  He has also authored many other articles on antitrust and other topics.  

For those wondering: the pic above shows Einer trying to move mountains 😉  We leave you with his great replies:

Why do you work in antitrust law? How did you first get into it?

I loved antitrust from the first class I had with Phil Areeda.  It just came so easily and naturally to me, and it involved a combination of creativity and analytical precision that I found very attractive from the get go.  I knew immediately that I had found my calling.  (I had already gone to and left medical school, so finding my calling did not initially come easily to me.)

What do you like the least about your job?

Grading exams.  But then again, the rest of the job of being a law professor is something I would do for free, so it is not so bad if I take the view that my entire annual salary is for grading exams.

What do you like the most about your job?

Thinking about whatever I find most interesting.  Really, that is an incredible luxury that I am thankful for every day.

Any favorite antitrust books?  And favorite non-antitrust law books?

Favorite antitrust books.  Bork’s The Antitrust Paradox: A lot was wrong in it, but he was also right in skewering many bad prior antitrust doctrines, and it is still the best written antitrust book ever.  Carlton & Perloff, Modern Industrial Organization: A wonderfully clear exposition of the antitrust economics that every antitrust lawyer and professor should master.

Favorite non-antitrust law books.  Ely’s Democracy and Distrust: Of course, that may be because it essentially used an antitrust theory to explain constitutional law.  Black’s Law Dictionary: I have always been impressed by the incredible brief lucidity of this book; it explains an amazing amount of conceptual logic in few words on every legal topic under the sun.  The Federalist Papers: A beautiful exposition of political thought, even though recent historical work suggests it might not have influenced the Constitutional adoption that much.  Richard Posner, Economic Analysis of Law: Never has any human said so many insightful things about so many areas of law in just one book; he had the advantage of living at a time when there was lots of low-hanging fruit, but by God he picked them all clean.  Bruce Ackerman, Social Justice in the Liberal State: It kept me up all night once because I found it so fascinating.  David Strauss, The Living Constitution: An elegant explanation for many anomalies in constitutional law.  John Rawls, A Theory of Justice: The philosopher most relevant to many legal issues, even though his mini-max is to me implausibly risk-averse.  Bob Woodward, The Brethren: Just a lot of fun; the stories about Chief Justice Burger are worth the price alone.   John Haar, A Civil Action: I could not put it down; who would have thought one could make civil tort litigation so gripping?

 You teach comparative US-EU antitrust law. How big is the transatlantic divide?

I think it is actually quite exaggerated.  Having co-written a Global Antitrust Casebook and taught Global Antitrust many times, I find that when you teach the cases on any particular topic side by side, you generally find that often there is a formally different way of expressing things, but a lot of substantive convergence.  And when the substance diverges, I think it can often be explained by a divergence in remedies.  The US courts repeatedly cite the overdeterrence threat from criminal penalties, private treble damages and class actions as a justification for narrowing US antitrust law.  That same logic suggests that competition law should be broader where those remedies do not exist, like in the EC.

 You were the chairman of the Antitrust Advisory Committee for the Obama campaign in 2008 (also of the Blogs and Op-Eds Committee and a member of the health policy group –congrats on this last one!). How has antitrust enforcement under the Obama administration performed in comparison with previous Administrations?

I think it is impossible for any outsider to tell for sure because performing well is not being more active or less active in the abstract.  It is bringing antitrust cases when they should be brought and not bringing them when they should not.  And to tell whether that is happening to a great or lesser extent than prior administrations, one would need the confidential case information on all the cases, which obviously we lack.  The only ones who really know for sure are the agency officials, and they are not the most neutral judges of how well they have done.

Let’s do it like economists => assume that you could change 3 antitrust rules, principles, judgments or institutions. What would you do?

– The Monsanto dicta that a vertical agreement does not exist when there is an announced condition and buyer acquiescence, which makes little functional sense, is contrary to standard contract law, and no longer seems necessary to narrow the doctrine now that Leegin overturned the per se rule.

– The Morton Salt holding that anticompetitive effects need not be proven under the Robinson Patman Act, which conflicts both with the plain meaning of the text and with sensible economics.

– We should have a specialized Antitrust Court because the issues are becoming too complex for many judges, who get only a few antitrust cases in a lifetime.

 Average working time/week?

70 hrs.  Sad, but true.  I really should learn to say “no” more often, but when so many wonderful opportunities arise, it is hard to say no, and I figure I better make hay while the sun is shining.

Most interesting, intense or funny moment of your career?

Before the very first class I ever taught, I was worried about running out of material, and I carefully planned a Q&A with elaborate trees for every possible answer.  My colleagues all laughed and told me that that is something only young professors worry about because it always takes more time to cover material than you think.  But the way the students answered my questions triggered a path that ended in 15 minutes, leaving me without any more material for the last 45 minutes of class.  So I sputtered on about material for the next class (which I had not prepared yet).

The very first time I testified as an expert, I realized I was going to need props to explain to a jury the complex concept that a loyalty discount on a consumable that was used on capital equipment was effectively bundling sales of the equipment that was due to be replaced to price penalties on the installed base that could not feasibly be replaced.  But I didn’t have any props of the actual equipment, so at the last minute I grabbed some Snickers and Twix candy bars to use as props to explain what was going on.  The lawyers were aghast, saying I could not do something so silly.  But I did it anyway, and the jury was riveted.  They woke up for the first time all day, and looked with rapt attention as I showed how price penalties on 9 Snickers might deter them from trying out the Twix.  It didn’t hurt that it was right before lunch; I think several jurors were salivating.  They came back with a verdict of $420 million for my side.

Your role model (if any) in the antitrust community? And outside of it?

Phil Areeda – he was the man who taught me to love antitrust and to be rigorous and precise in antitrust analysis.  Richard Posner – partly for his antitrust work, but outside of it for his ability to work across so many different fields and be so productive.

What you like the most about economics in antitrust law?

Its rigor and clarifying logic.

What you like the least about economics in antitrust law?

When judges ignore it in favor of formalisms or simpler but outdated analysis, and when it is applied in an unbalanced way that only considers overdeterrence issues without worrying about underdeterrence (though that may be better than the opposite tendency which pervaded the 1960s).

What career/personal achievement are you most proud of?

Career achievement: My book Statutory Default Rules, which I immodestly think is the most coherent theory of statutory interpretation out there.  Personal Achievement: Being the first member of my family to go to law school or medical school, and winning the UC San Diego tanning invitational after I decided to drop out of medical school to go to law school.

You’re the main representative of the Harvard School. How would you synthetize in one paragraph the contribution of the Harvard School to antitrust law?

I am actually a big admirer of the Chicago School, which I think clarified a lot and helped rid the world of many bad antitrust doctrines.  But I think the core of the Harvard School is to not settle for certain Chicago School models that are overly simplistic when reality is more complex and to pay close attention to institutional and administrative issues related to both overdeterrence and underdeterrence.  This Harvard approach may sometimes justify simple rules to deal with a complex world, but it does not gloss over the complexity.

In addition to antitrust, you are an expert on health policy, contracts, and statutory interpretation.  What does antitrust have that other disciplines lack? What do other disciplines have that antitrust lacks?

What antitrust has that other disciplines lack is a rigorous, widely-accepted common framework for analysis.  What the other disciplines have is more low-hanging fruit in the form of unresolved issues one can solve for the first time.

A piece of “counterfactual” analysis: what would you do if you weren’t in your current position?

I would still be a law professor at Berkeley, and I would probably have a much better tan right now.

Besides being a “competition geek” (sorry for this one, but we all are), what are your hobbies?

Playing tennis.

 Favorite movies?

Life Is Beautiful.  The Godfather.  Jean de Florette.  Casablanca.  Monty Python and the Holy Grail.  La Femme Nikita.  It’s a Wonderful Life.  Good Will Hunting.  There’s Something About Mary.  Groundhog Day.  Women on the Verge of a Nervous Breakdown.  Kiss Kiss Bang Bang.  The Legend of the Drunken Master.  The Rocky Horror Picture Show.  The Spy Who Shagged Me.  Midnight Run.  The Incredibles.  Up.  Wallace and Grommit’s The Wrong Trousers.

Favorite music?

Bob Dylan, Cake, BB King, Edward Sharpe and the Magnetic Zeros, Barenaked Ladies, Coldplay, Ingrid Michaelson, Counting Crows, Fountains of Wayne, B-52s, Sinatra, Talking Heads, Springsteen, Elvis Costello, The Doors, Donovan, Jack Johnson, Gin Blossoms, Goo Goo Dolls, Green Day, REM, U2, Janis Joplin, Jason Mraz, Matchbox Twenty, The Pretenders, The Ramones, Smash Mouth, Stevie Ray Vaughn.

Websites that you visit the most (besides Chillin’Competition)?

NY Times, Westlaw, Boston Globe, SSRN, Wall St Journal, 538.com,ESPN, RealClearPolitics, The New Republic, The Atlantic, Facebook, LinkedIn.

A piece of advice for junior competition professionals?

If you are an antitrust lawyer, learn the economics.  If you are an antitrust economist, learn the law.  Don’t pretend you can do one well without the other.

Your favorite motto?

I have three:

“The definition of insanity is doing the same thing over and over and expecting different results.”

“If you don’t make mistakes, you’re not working on hard enough problems.”

“I dream of a world where chickens can cross the road without having their motives questioned.”